That position is wrong. Lawyers have a duty of competency to their client, and candor to the court, to look at what is relevant to their case and responsive to discovery requests. This can be accomplished using one of the many eDiscovery review applications, leveraging search terms, advanced analytics, time lines, predictive coding, and knowing the scope of discovery.
This issue was highlighted in a criminal case where the government produced over 1.9 million pages of discovery, plus 49 audio recordings, and two videos. United States v. Pomrenke, 2015 U.S. Dist. LEXIS 165287, *1. Defense counsel sought a six-month continuance.
They got a six-week one instead.
Defense counsel argued that they had an ethical obligation to “review every document produced by the government to determine its relevance or lack thereof.” Their estimated time for three lawyers working around the clock would take more than a year to complete. Pomrenke, at *4.
The Court did not buy the argument. Judge James P. Jones stated:
I believe that many of the produced documents can be reviewed very quickly. Counsel for the defendants can use e-discovery software to aid in their review and can enlist the assistance of additional attorneys if necessary. In addition to the three attorneys of record, the defense team also includes an investigator. Moreover, the defendant’s husband is legally trained. Although he is not counsel of record in this case, I previously affirmed an order of the magistrate judge allowing the defendant to disclose the discovery materials to her husband, anticipating that he would assist with trial preparation.
Pomrenke, at *5.
The Court granted a six-week continuance, which was “adequate time for the defense to prepare for trial while still serving the interest of the public and the defendant in having this case promptly concluded.” Pomrenke, at *5-6.
Bow Tie Thoughts
Relevancy review does not require eyes on every document. Determining the case story lawyers want to tell the jury focuses review to find that information. Moreover, jury instructions are highly effective in structuring document review to find what is relevant.
Attorneys can focus the scope of discovery to the key players in the case. From there, searches can be further refined based on time frames, and subject matter to search for in the database.
“Predictive Coding” is also extremely effective in such cases. While different software applications vary, the general theme is the software learns from review to identify what is relevant and what is irrelevant.
One way to help train Predictive Coding on what is irrelevant, is to search for substantive information not relevant to the case. For example, if you have a construction defect case and every project the contractor worked on was added to the database (overly broad collections happen and not everyone removes such data in processing), code the irrelevant projects as such (and ultimately have them removed from the database to reduce costs). Other methods are to search and tag emails from newsletters and advertisements as irrelevant. There are other methods as well to help identify irrelevant information, so these are just examples.
Conducting faceted searches layered with data identified from Predictive Coding is also a very effective way to zero in on responsive information. Searches are run over the possibly relevant information, thus any review is focused and helps train the system for what could be relevant to the case.
There are many ways to identify relevant electronically stored information that further Federal Rule of Civil Procedure Rule 1 and proportionality. None of these methods should require a brute force manual review of each individual record, because no one should have to spend years on document review.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.